Ducker v Smith

Case [2011] NSWCA 212


Court of Appeal

New South Wales

Case Title: Ducker v Smith
Medium Neutral Citation: [2011] NSWCA 212
Hearing Date(s): 15 April 2011
Decision Date: 27 July 2011
Jurisdiction:
Before:

Hodgson JA at [1]
McColl JA at [5]
Basten JA at [68]

Decision:

Appeal dismissed with costs
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

FAMILY LAW - de facto relationship - adjustment of property interests - s 20, Property (Relationships) Act 1984 (NSW)

FAMILY LAW - de facto relationship - evaluation of contributions of parties over 13 year period of cohabitation - relevance of initial contributions where real estate purchased partway through relationship - evaluation of non-financial contributions - discretion of trial judge to determine methodology when considering s 20 order - need to articulate findings and reasons for order - whether adjustment order just and equitable

FAMILY LAW - de facto relationship - departure of one co-owner from co-owned property - whether departed co-owner entitled to occupation fee

Legislation Cited:

Family Provision Act 1982 (NSW)
Property (Relationships) Act 1984 (NSW)

Cases Cited:

Baker v Towle [2008] NSWCA 73
Bilous v Mudaliar [2006] NSWCA 38; (2006) 65 NSWLR 615
Callow v Rupchev [2009] NSWCA 148; (2009) 14 BPR 27,533
Chanter v Catts [2005] NSWCA 411; (2005) 64 NSWLR 360
French v Barcham [2008] EWHC 1505 (Ch); [2009] 1 WLR 1124; [2009] 1 All ER 145
Golosky v Golosky [1993] NSWCA 111
Goodman v Windeyer [1980] HCA 31; (1980) 144 CLR 490
House v R [1936] HCA 40; (1936) 55 CLR 499
Howlett v Neilson [2005] NSWCA 149; (2005) 33 Fam L R 402
Manns v Kennedy [2007] NSWCA 217
Saric v Steward [2006] NSWCA 260; (2007) DFC 95,401
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201

Texts Cited:
Category: Principal judgment
Parties:

Alan Graham Ducker - Appellant
Janet Adele Smith - Respondent

Representation
- Counsel:

Mr E Finnane - Appellant
Ms D Reid - Respondent

- Solicitors:

Irene E Pickel - Appellant
Mitry Lawyers - Respondent

File number(s): 2010/269157
Decision Under Appeal
- Court / Tribunal:
- Before: Tamberlin AJ
- Date of Decision: 14 May 2010
- Citation: Ducker v Smith [2010] NSWSC 462
- Court File Number(s) SC 2009/287699
Publication Restriction:

No

Judgment

  1. HODGSON JA: I agree with the orders proposed by McColl JA and with her reasons. I would add the following comments.

  1. I think it is desirable that, in Property (Relationships) Act cases, there generally be clear findings as to (1) the assets of the parties at the beginning of the relationship, at the end of the relationship, and at the time of…

Continue reading Ducker v Smith

Sign in free to access the full text

Details
AGLC
Ducker v Smith [2011] NSWCA 212
Case
[2011] NSWCA 212
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal concerning the adjustment of property interests arising from a de facto relationship. The dispute involved the evaluation of contributions made by the parties over a 13-year period of cohabitation, particularly in relation to real estate acquired partway through the relationship, and the entitlement of a departed co-owner to an occupation fee.

The court was required to determine whether the trial judge had erred in their evaluation of the parties' financial and non-financial contributions, and whether the methodology employed in considering an order under s 20 of the *Property (Relationships) Act 1984* (NSW) was appropriate. Furthermore, the court had to assess whether the adjustment order made by the trial judge was just and equitable, and whether the departed co-owner was entitled to an occupation fee.

The Court of Appeal affirmed the discretion of the trial judge in determining the methodology for considering a s 20 order, provided that the findings and reasons for the order were clearly articulated. The court found that the trial judge had adequately considered the contributions of both parties over the entire period of the relationship, including initial contributions and those made after the acquisition of real estate. The appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.